STATEMENT BY MR BULELANI NGCUKA, FORMER NDPP, ON THE DECISION OF THE NPA TO WITHDRAW THE CHARGES IN THE MATTER OF S v ZUMA AND THE CONTENTS OF TRANSCRIPTS OF RECORDINGS OF HIS PRIVATE CONVERSATIONS, APRIL 7 2009

I am dismayed and disappointed by the assertions made about me by Adv Mokotedi Mpshe, the acting national director of public prosecutions, regarding my alleged role in the matter of the State versus Mr Jacob Zuma (see here).

At the outset, let me state for the record that as the founding NDPP head, I hold the institution in the highest regard as one of the pillars of our democracy whose independence has to be jealously guarded and, accordingly, I would never do anything or be party to anything that seeks to undermine the integrity and independence of this institution.

I have stated - and wish to reiterate this point - that I have never been party to any conspiracy to frustrate the political ambition of Mr Zuma to ascend the highest office in the land. As mentioned previously, in my capacity as head of the NDPP, I had the opportunity to prosecute Mr Zuma. I did not. Regarding the merits of the decision to drop the charges, this is a matter within the margin of appreciation of the National Prosecuting Authority (NPA). I will therefore not make any comments with regards thereto.

The NPA's assertions have apparently been based on "transcripts" of some recordings that are said to contain discussions between me and Adv Leonard McCarthy, former head of the Directorate of Special Operations (the Scorpions). For the record, I have never been given access to any of these "transcripts".

A week ago, however, I was approached by the NPA through the prosecution team in the Zuma matter to respond under oath to certain questions.  These questions had been distilled from notes made by the prosecution team during a briefing to the NPA executive management by Advocates Sibongile Mzinyati and Willie Hofmeyr.  The two had seemingly listened to "recordings" in the possession of Mr Zuma's attorneys containing, among others, conversations between Mr McCarthy and I. Importantly, I was told that these "recordings" were part of oral representations that the defence team had made as part of their case for dropping of charges against Mr Zuma.

On that occasion I was informed that I was being approached by the NPA as a possible witness in the matter of the application for the stay of prosecution by Mr Zuma, should such a process ensue. I indicated to the prosecution team that I was willing to furnish an affidavit in response to allegations made against me in the anticipated application for stay of prosecution. On the advice of my legal advisors, I declined to furnish a sworn statement for the following reasons:

(i) I had no access to any transcripts of the recordings and would therefore be unable to fully and accurately respond to the questions. Selective "excerpts" had the potential to distort context.

(ii) It was not clear to me whether the recordings were authentic and legally obtained, and how they had come to be in the possession of Mr Zuma's lawyers.  I requested the NPA to investigate the legality of the monitoring and interception of my private conversations.

(iii) There was huge potential for an "ambush" in responding on oath to questions distilled from an account of third parties of recordings they had listened to in the offices of Mr Zuma's lawyers. The selective use of extracts from various discussions we witnessed during the NPA media conference yesterday confirmed my worst fears of a potential for an ambush.  All of these concerns and reservations are on record and the NDPP was aware of them.

I however responded to the questions which were by and large of a general nature.  I did this to the best of my ability in the absence of a full transcript or allegations made on oath against me. Therefore, it would be erroneous to suggest (without explanation of the context) that I declined or refused to respond under oath to questions.

It is disturbing and inexplicable that the "transcripts" that the NPA made available to the media yesterday were never put to me during my two meetings with the NPA representatives.   Whether the NDPP and other members of the NPA had the recordings and transcripts at the time, I do not know.  I however contend that natural justice and fairness demanded that at the very least the particular extracts the NPA relied upon should have been put to me for a response.

From yesterday's NPA media briefing it appears that recommendations have been made to the competent authorities for further investigations on the matter to be made.  Pending such investigations and access to the full "recordings" and "transcripts", I shall reserve my comments on the contents of the "transcripts" distributed during the NPA's media conference (see here).

Further, regarding the "transcripts" of the recordings, I am concerned to note that, by its own admission, the NPA states that:

(i) There were and are no official transcripts of the recordings available;

(ii) In some instances, the discussions between me and Adv McCarthy have been paraphrased by the NPA;

(iii) The NPA has on its own decided which parts of the recordings are relevant or important for the context of a particular discussion.  Also, the NPA has left out of the published extracts those parts of the recordings the NPA itself considered not relevant to the context of the discussions between me and McCarthy;

(iv) The NPA has itself added comments on the recordings to explain issues it considered not clear; and

(v) Most importantly, the NPA stresses that its comments on the transcripts are ‘tentative' and that further investigations may cast more light on their view of the issues they have commented on.

It is my considered view that with all of the above disclaimers on the part of the NPA, it would be untenable to make any statement in response to allegations made arising from what are selective transcripts of recordings.  Hopefully, there will in the future be an opportunity to have full access to independently authenticated recordings and a full transcript of the recordings.  Should such occasion arise, I will respond fully to assertions regarding the conversations and their import.

Note: NPA disclaimers accompanying the "transcripts":

"The NPA has tried to be as fair as possible in its transcription of the relevant portions of the recordings.

The NPA has had to type transcript of relevant extracts ourselves as there were no official transcripts available.  We have tried to take every care to ensure that they are accurate, but in some places the recordings are not very clear.

In some instances the discussion has been paraphrased. 

We have covered all those parts of the recordings that are relevant or that is important for the context of the particular discussion to ensure that the context is not distorted.

We have left out those parts that are not relevant as this often deals with personal or other details.

The NPA has added comments on the recordings that explain issues that are not very clear, or where information inside the NPA by corroborates the conversations. We should stress that these are our own tentative comments and that further investigation may cast more light on these issues..."

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